BMW and EEOC Reach 1.6M Settlement - The Importance of “Individual Consideration” - October 26th, 2015
On September 8th, 2015, a settlement was announced between BMW Manufacturing Company and the Equal Employment Opportunity Commission (EEOC) for 1.6M. The settlement was regarding allegations that BMW’s background check program through a new staffing contractor on existing workers at its Spartanburg, South Carolina production plant had a disparate impact on its African-American workers.
In 2008, BMW switched contractors for the management of its company logistics and required the new contractor to perform new criminal background checks on all existing workers who had applied to keep their positions. At that time, BMW had a policy to automatically exclude workers who had been convicted of certain categories of crimes. According to the original complaint, after the completion of new background checks, approximately 100 incumbent logistics workers lost their jobs. Among those workers were many individuals who had an extended number of years at that location. The EEOC alleged that 80% of those terminated workers were African-Americans. As per the guidance of the EEOC, when using arrest and conviction records in an employment decision, employers are required to consider the following factors:
- The facts and circumstances surrounding the offense
- The number of offenses for which the individual was convicted
- The age of the individual at the time of conviction or release from prison
- Evidence that the individual has performed the same type of work, post-conviction, with the same or a different employer, without incidents of criminal conduct
- The length and consistence of employment history before and after the offense
- Any efforts of the application towards rehabilitation
- Employment or character references obtained regarding the individual’s fitness for the particular position
- Whether the individual will be bonded for the position
To conform to the EEOC’s guidance, employers must give individual consideration for any criminal records. An effective background screening policy will clearly note that each report will be reviewed in compliance with the EEOC’s guidance. Any blanket or broad automatic exclusions should not be part of any company’s background screening policy as individual consideration of each background check with a criminal record is required. It is always advisable for organizations to consult with legal counsel to review their background screening policy to mitigate risks and promote maximum compliance.
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